R v Suh [2014] NSWDC 319

District Court New South Wales

Medium Neutral Citation: R v Suh [2014] NSWDC 319 Hearing dates: 17/11/2014 Decision date: 19 November 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: The evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995. Catchwords: CRIMINAL – admissibility, expert opinion, specialised knowledge Legislation Cited: Evidence Act 1995 ss 79,108C Cases Cited: Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370 Dupas v R [2012] VSCA 328 HG v The Queen (1999) 197 CLR 414 MA v The Queen [2013] VSCA 20 SLS v The Queen [2014] VSCA 31 Veleski v The Queen (2002) 76 ALJR of 402 R v XY [2013] NSWCCA 121 Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed, 2014, Thomson Reuters) Category: Procedural and other rulings Parties: Director of Public Prosecutions Jung Shik Suh - Accused Representation: Counsel: Mr R Munro – Crown Mr K Ginges - Accused

Solicitors: Director of Public Prosecutions Nyman Gibson Miralis - Accused File Number(s): 201/315823

Judgment -

Re admissibility of opinion evidence of Professor Susan Hayes

Introduction 1. Jung Shik Suh is to be tried in relation to two counts of indecent assault allegedly committed on the complainant (EK) between 1 June 2010 and 4 October 2012 and on 4 October 2012. At the relevant time the complainant was either 3, 4 or 5 years of age. 2. The trial commenced last Thursday, 13 November 2014, with a large number of issues to be resolved many of which have been dealt with along the way. The outstanding issue that this judgment primarily addresses relates to objection to the evidence of Professor Susan Hayes a "psychologist", expressing opinions as to the observed "sexualised behaviour" of the complainant between May and December 2012 as particularised in a statement of the complainant's school teacher Piera Lo Surdo, on the basis that she does not have "specialised knowledge" such as to satisfy s 79 Evidence Act (1995), as an exception to the "opinion rule" of exclusion of hearsay evidence. I gave a general 'ruling' on this matter late Monday afternoon. 3. Evidence has been given on the voir dire by Professor Hayes last Thursday (the Court did not sit on Friday) and on Monday (17 November) counsel for the accused produced extensive written submissions in relation to this and other issues which are Exhibit 5 in the proceedings. 4. In summary the issues raised by the accused in respect of the various objections are: (i) Professor Hayes does not have the relevant experience, knowledge and/or training ("specialised knowledge") required by s 79 Evidence Act 1995 to express the opinions contained within her report of 11 September 2013 and also expressed in her evidence of 14 October 2013 at an earlier trial. (ii) Even if she had the relevant expertise the opinions she expresses are not admissible either as irrelevant or not otherwise satisfying the requirements of s 79. (iii) Her evidence, if otherwise admissible "could not" substantially affect the assessment of the credibility of the complainant (s 108C Evidence Act 1995). (iv) Her evidence if otherwise admissible ought be excluded pursuant to s 137 Evidence Act 1995. 1. The issues raised in the written and oral submissions from the evidence on the voir dire raise consideration of a number of sections of the Evidence Act.